AILA: AG Attempts Power Grab over Immigration Appeals

WASHINGTON, DC - On July 2, 2019, Attorney General (AG) Barr published a final rule, further expanding his authority to reshape immigration law. The rule was issued in a highly unusual manner by resurrecting an old proposed regulation from 11 years ago and making it final within 60 days without any opportunity for public comment.

AILA President Marketa Lindt said, "This regulation exemplifies why the immigration courts should not be housed under the Department of Justice (DOJ). Under this administration, the AG has already utilized the certification power in an unprecedented manner to unilaterally strip immigration judges of basic operational authorities, interfere with judicial independence, and even attempt to rewrite asylum and detention laws. The American legal system is designed with fundamental procedural protections, such as briefing by the parties, to ensure the decision maker-here the AG-hears all points of view before deciding an important case. This new rule, however, authorizes the AG to singlehandedly designate Board of Immigration Appeals (Board) decisions as precedent - and do so literally overnight bypassing the necessary legal procedures and without any checks and balances."

AILA Executive Director Benjamin Johnson added, "This is the most aggressive effort to unify control over the immigration courts in 20 years; I have never seen an administration claw back a discarded rule like this in order to further assert its power. The scope of this power grab could be immense. This rule attempts to shield decisions issued by the Board - including decisions for which the Board didn't even bother to write an opinion - from federal court review and tries to force the U.S. Courts of Appeals to presume that the Board reviewed all the available information and claims made by the parties even if there's nothing to show the Board did so. Simply put, the AG will have more power with less oversight, and immigrants' right to appeal to the federal courts will be far more limited. This attack on the judicial branch proves further that our nation urgently needs an independent immigration court system separate from the Department of Justice. Nothing less will suffice."

Related Resources

• EOIR Final Rule on Administrative Review Procedures (84 FR 31463, 7/2/19)